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Supreme Court rejects challenge to pre-trial asset freeze

The US Supreme Court [official website] ruled [opinion, PDF] 6-3 Tuesday in Kaley v. United States [SCOTUSblog backgrounder] that a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury's finding of probable cause underlying a pre-trial seizure of assets. The US Court of Appeals for the Eleventh Circuit ruled against [opinion] the availability of such hearings because "defendants are not entitled to try the entire case twice," before the trial and then again in front of a judge and jury. The Supreme Court was asked to consider whether the Fifth and Sixth Amendments [text] give a defendant the right to challenge the evidentiary support of the underlying charges in a pre-trial adversarial hearing when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice. Relying on precedent, the Court found that the freeze placed on the Kaleys' money is valid because "a defendant has no Sixth Amendment right to spend another person's money for legal fees." "The grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime," Justice Elena Kagan wrote, affirming the Eleventh Circuit's ruling for the majority.

If the question in a pre-trial forfeiture case is whether there is probable cause to think the defendant committed the crime alleged, then the answer is: whatever the grand jury decides. ... Congress of course may strike its own balance and give defendants like the Kaleys the kind of hearing they want. ... But the Due Process Clause, even when combined with the defendant's Sixth Amendment interests, does not command those results.
Chief Justice Roberts, joined by Justices Breyer and Sotomayor, dissented: "few things could do more to 'undermine the criminal justice system's integrity' than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard."

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